Rights and Accountability 6 April 2012
This week the United Nations held an international meeting in Geneva on the question of Palestinian political prisoners in Israeli prisons and detention facilities. Professor John Dugard presented on the status of Palestinians who engage in resistance against Israeli oppression. Former Special Rapporteur on the human rights situation in the Occupied Palestinian Territory, Professor Dugard draws a parallel with the treatment of militant political opponents by South Africa’s apartheid regime and highlights the similarities between the two regimes. The below is a summary of Professor Dugard’s analysis.
Delegitimizing political prisoners
Israel does not recognize Palestinians who engage in resistance activities against the repression as combatants, protesters or “political” prisoners. To avoid giving legitimacy to their cause, it treats them as “terrorists,” ordinary criminals or security prisoners. The South African apartheid regime treated Nelson Mandela and his fellow political prisoners in a similar manner.
Moreover, Israel denies its political prisoners who qualify as combatants the status of prisoners of war (POW). It refuses to recognize that there is a conflict between the State of Israel and the Palestinian people who are exercising their right to self-determination and statehood. POWs cannot be prosecuted and punished as ordinary criminals. Instead they may be detained until the conclusion of hostilities, when they are to be released and repatriated.
POW status is applicable to members of an organized group fighting “against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination”, according to Additional Protocol I to the Geneva Conventions of 1949. The Palestinian people have a right to self-determination and are subject to alien occupation and possibly colonial domination. The struggle between the PLO, as a national liberation movement, and Israel should therefore be recognized as an international armed conflict to which the Geneva Conventions apply.
The Palestine Liberation Organization undertook to apply the Geneva Conventions and Protocol I in a declaration, just like the African National Congress in South Africa. Many combatants meet the requirements laid down in Protocol I. They are members of an organized force, under a responsible command structure that complies with the rules of international humanitarian law.
Palestinian freedom fighters are not criminals
Israel resembles apartheid South Africa in refusing to sign Protocol I to the Geneva Conventions. The Protocol’s extension of the benefits of the Geneva Conventions to the PLO as a national liberation movement is therefore not binding on Israel. However, Dugard argues that Protocol I has become part of customary international law because some 170 states are party to it. Israel is therefore bound by the Protocol despite the fact that it is not a party.
Hence contrary to their obligations under international customary law, the Israeli courts have rejected the argument that Palestinian resistance fighters are engaged in a war of self-determination and are therefore entitled to POW status. In addition, the Israeli courts have used the excuse in recent years that Palestinian resistance fighters fail to comply with the laws of armed conflict and therefore are not entitled to POW status.
But if Palestinian combatants were held as prisoners of war, they would be held until the end of the occupation, which could be for many years. They would be released at the same time as those convicted by Israeli military courts and imprisoned by Israel as criminals. So the practical implications of prisoner of war status are not significant.
However, the symbolic or political implications of the POW status are important. Prisoners of war are not treated as criminals but as worthy opponents in a military conflict, as freedom fighters engaged in a war of self-determination whose rights are recognized and determined by international law.
Military courts
In apartheid South Africa combatants were tried under criminal law. Such a trial gave the militants the opportunity to confront their opponent and advocate their cause in a political trial. In apartheid South Africa and Namibia militants used the political trial to good effect. Ably defended by competent and sympathetic lawyers in non-military courts open to the public and attended by the press and foreign observers, they exploited the rules of procedure and evidence to the advantage of their political cause. The history of apartheid is replete with political trials that advanced the stature of the defendants and highlighted repression and discrimination.
Most Palestinian combatants are tried by military courts despite international humanitarian law’s preference for impartial civilian courts. Military courts are intended to be the exception and not the rule, according to the Fourth Geneva Convention. Such courts are staffed by military judges lacking independence and sit in inaccessible places, sometimes behind closed doors, applying an inaccessible military law with little regard for the rules of due process.
In general, Palestinian militants are not given the opportunity to confront the occupying power in open court before impartial judges applying due process of law.
The Israeli regime murders political opponents
Those who refuse to accept the comparison of Israel’s repressive regime in the occupied West Bank and Gaza Strip to that of apartheid proudly proclaim that at least Palestinian political prisoners are not executed and that Israeli is a state that has de facto abolished the death penalty. It is true that apartheid South Africa executed political prisoners after trial before civilian, non-military courts applying proper legal procedures.
But more Palestinians have been killed in targeted assassinations of combatants than were judicially executed for political crimes in South Africa. Israel is not an abolitionist state. It is a state that practices capital punishment in an arbitrary and capricious manner without a trial. However cruel and inhuman the conditions of Palestinian prisoners, however unfair the trials that sent them to prison, and however demeaning their characterization as “criminals” or “terrorists”, we should not forget that Palestinian prisoners are the fortunate ones. For they were not murdered by a regime that murders political opponents under the euphemism of “targeted assassinations”.
